Supreme Court sets test for waiver of attorney-client privilege

The Supreme Court of Virginia adopts today a five-part test for determining whether an inadvertent disclosure of a document covered by the attorney-client privilege waives the privilege.

The issue in Walton v. Mid-Atlantic Spine Specialists PC arose after a letter from an orthopedic surgeon to his attorney was copied by a company the surgeon’s practice had retained to respond to a subpoena duces tecum in a workers’ compensation case.

A hearing failed to disclose just how that had happened, but the letter made its way to plaintiff’s counsel in a medical malpractice case.

The trial judge in Newport News found that the privilege had not been waived and barred the plaintiff’s attorney from using at it at trial, which resulted in a defense verdict.

The plaintiff’s attorney argued that the letter was important because it involved a key point in the trial – which X-ray the surgeon had looked at in reviewing the treatment of a fractured wrist.

Applying the test – “(1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of the discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation, making it unfair to allow the party to invoke confidentiality under the circumstances” – the Supreme Court concluded that a waiver had occurred.
By Alan Cooper